J-S51029-20

NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37

COMMONWEALTH OF PENNSYLVANIA

v.

TODD DONALD ATKINSON 

Appellant

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 IN THE SUPERIOR COURT OF

 PENNSYLVANIA

 No. 976 MDA 2020

Appeal from the PCRA Order Entered July 9, 2020

In the Court of Common Pleas of Lancaster County Criminal Division at 

No(s): CP-36-CR-0000336-2015

BEFORE: MURRAY, J., McLAUGHLIN, J., and McCAFFERY, J.

MEMORANDUM BY McLAUGHLIN, J.: FILED FEBRUARY 17, 2021

Todd Donald Atkinson appeals pro se from the order dismissing his Post 

Conviction Relief Act (“PCRA”) petition. See 42 Pa.C.S.A. §§ 9541-9546. We 

affirm based on the PCRA court’s opinion.

The PCRA court aptly summarized the underlying facts:

Atkinson was arrested on December 18, 2014, and charged 

with six counts of sexual abuse of children, child pornography, and 

one count of criminal use of communication facility.[1] This criminal 

prosecution arose from a September 5, 2014, undercover 

investigation by the Pennsylvania State Police into internet 

sharing of child pornography that led to a computer, the IP 

address of which traced back to Quiche Amour, LLC, at the home 

address of Atkinson.

When Atkinson was arrested on these charges, he was on 

probation for two counts of indecent assault of a person less than 

13 years of age, criminal solicitation for indecent assault of a 

person less than 13 years of age, endangering the welfare of 

____________________________________________

1 18 Pa.C.S.A. §§ 6312(d), and 7512(a), respectfully.
J-S51029-20

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children, corruption of minors, and indecent exposure, and is a 

registered Tier III Megan’s Law offender.

* * *

A jury convicted Atkinson on all counts. He was ordered to 

undergo an assessment by the Sexual Offenders Assessment 

Board prior to sentencing. Atkinson was found to have not met 

the statutory criteria for sexually violent predator (SVP) status. 

On September 27, 2016, Atkinson was sentenced to 25 to 50 

years of incarceration on each count of child pornography plus five 

years of probation for the charge of criminal use of communication 

facility. All sentences were to be served concurrently. No postsentence motions were filed.

A direct appeal to the Superior Court of Pennsylvania was 

filed on October 26, 2016, and a three-judge panel of the Superior 

Court affirmed Atkinson’s judgment of sentence in an unpublished 

memorandum opinion on January 17, 2018. See 

Commonwealth v. Atkinson, 183 A.3d 1064 (Table) (Pa. Super. 

Jan. 17, 2018). See also Commonwealth v. Atkinson, 2018 WL 

[460962] (Pa. Super. Jan. 17, 2018). A petition for allowance of 

appeal was denied by the Supreme Court of Pennsylvania on June 

22, 2018. Commonwealth v. Atkinson, 647 Pa. 24, 187 A.3d 

912 (Table) (2018). 

* * *

On August 12, 2019, Atkinson filed, pro se, a timely PCRA 

petition. In this petition, Atkinson challenges the legality of his 

mandatory minimum sentences in light of the United States 

Supreme Court’s 2013 decision in Alleyne v. United States, 570 

U.S. 99 (2013), and trial and appellate counsels’ ineffectiveness 

in failing to raise the Alleyne violation. Pursuant to Rule 904(A) 

of the Pennsylvania Rules of Criminal Procedure, Dennis C. 

Dougherty, Esquire, was appointed on August 16, 2019, to

represent Atkinson on his collateral claims, and granted leave to 

file an amended petition within 60 days. Counsel requested a 60-

day extension, which was granted on October 15, 2019.

On November 1, 2019, Atkinson filed a “Motion for

Withdrawal of Appointed Counsel and to Proceed Pro Se,” citing 

“irreconcilable conflict and difference of opinion on the manner in 

which this case should be litigated.” Motion for Withdrawal at 2. 
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Following a Grazier[2] Hearing held via video-conference on March 

16, 2020, Atkinson’s motion to proceed pro se was granted, and

Attorney Dougherty was granted leave to withdraw his 

appearance in this matter.

PCRA Ct. Op., 5/28/20, at 1-5 (footnotes omitted).

After denying a motion Atkinson filed regarding additional discovery, the 

PCRA court issued Rule 907 notice of intent to dismiss Atkinson’s petition 

without a hearing, together with an opinion dated May 28, 2020. See

Pa.R.Crim.P. 907. Atkinson filed a response, which the PCRA court treated as 

an amended PCRA petition. The PCRA court issued an order denying Atkinson’s 

petition on July 7, 2020, based upon the reasoning set forth in its May 28, 

2020 opinion. Atkinson filed a timely appeal and the PCRA court issued a 

Pa.R.A.P. 1925(a) opinion on July 20, 2020 relying on its earlier opinion.

Atkinson raises the following issues:

1. Does the sentence imposed of a mandatory minimum 

sentence of 25 to 50 years violate the Apprendi[3] and 

Alleyne Supreme Court decisions which are preserved 

and properly raised in [Atkinson’s] PCRA petition and 

supplemental PCRA petitions?

2. Did the decision[] in Commonwealth v. Muniz, [] 164 

A.3d 1189 (Pa. 2017) apply to [Atkinson’s] case being he 

had a timely filed PCRA petition when Muniz was decided 

by the higher courts?

3. Did the trial court err by denying [Atkinson] an 

evidentiary hearing on the merits of his timely filed PCRA 

[petition] and should his case be remanded due to the 

illegal sentence imposed because of Judge based facts 

____________________________________________

2 Commonwealth v. Grazier, 713 A.2d 81 (Pa. 1998).

3 Apprendi v. New Jersey, 530 U.S. 466 (2000).
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not found by a jury beyond a reasonable doubt pursuant 

to Appendi v. New Jersey, (2000) and its progeny 

Alleyne v. United States, (2013)?

4. Is the mandatory minimum sentence imposed 

unconstitutional pursuant to Apprendi and Alleyne

mandates, was trial counsel ineffective for failure to 

object to illegal and unconstitutional sentencing 

provisions imposed against [Atkinson]? 

5. What statutes and provisions was [Atkinson] sentenced 

to and are these sentencing statutes and provisions 

unconstitutional and must they be vacated on remand?

6. Does the following case [law] apply to [Atkinson’s] case 

and warrant a remand and vacating of the illegal 

sentence[:] Commonwealth v. Wolfe, 2014 Pa.Super. 

Lexis 4977 (2014); Alleyne v. United States, 133 S.Ct 

2151 (2013); Commonwealth v. Newman, 99 A.3d 86 

(Pa.Super. 2014); Apprendi v. New Jersey, (2000); 

Commonwealth v. Golson (Pa.Super[.] June 4, 2018); 

Commonwealth v. Butcher, 2019 Pa.Super unpub.

LEXIS 2208; Commonwealth v. Muniz, . . . 164 A.3d 

1189 (Pa. 2017)?

7. Does [Atkinson] deserve a “reduction of sentence” 

consistent with the recent decision in Muniz as offense 

grading had been downgraded?

8. Is [Atkinson’s] sentence pursuant to 42 Pa.C.S.A. § 

9799.14 illegal and subject to remand and resentencing 

due to the Sixth Amendment violation and 

unconstitutional statutes?

9. [Atkinson] was denied effective assistance of counsel due 

to counsel’s failure to object to the unconstitutional 

minimum and maximum sentencing provisions when 

Alleyne was decided before [Atkinson’s] sentencing?

[sic]

10. Trial and sentencing counsel was ineffective for failing to 

object to the illegal sentence the court was imposing as 

clearly unconstitutional in light of Supreme Court ruling 

in Alleyne any “facts” that increases [sic] the minimum 

or maximum sentence must be charged in the 
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information and submitted to the jury and proven beyond 

a reasonable doubt standard? [sic]

Atkinson’s Br. at 5-7 (numbering and case italicization added).

“Our standard of review for an order denying PCRA relief is whether the 

record supports the PCRA court’s determination, and whether the PCRA court’s 

determination is free of legal error.” Commonwealth v. Phillips, 31 A.3d 

317, 319 (Pa.Super. 2011).

In this case, although he presents ten issues, Atkinson’s claims all 

concern his contention that the trial court imposed an illegal sentence 

pursuant to Alleyne.

4 He maintains that because the trial court imposed a 

mandatory minimum sentence for repeat sex offenders pursuant to 42 

Pa.C.S.A. § 9718.2, his constitutional rights were violated. Likewise, he argues 

that his trial counsel was ineffective for failing to raise this issue. 

The PCRA court found Atkinson’s Alleyne claim lacked merit because 

the trial court sentenced him based upon his prior convictions. “Alleyne held 

____________________________________________

4 Atkinson’s pro se brief fails to comply with the Pennsylvania Rules of 

Appellate Procedure because he presents all argument in one section instead 

of separate sections for each issue. See Pa.R.A.P. 2119(a) (stating that the 

argument section of the parties’ briefs “shall be divided into as many parts as 

there are questions to be argued; and shall have at the head of each part--in 

distinctive type or in type distinctly displayed--the particular point treated 

therein, followed by such discussion and citation of authorities as are deemed 

pertinent”). Nevertheless, because the failings of Atkinson’s brief do not 

hamper our review, we decline to find his issues waived. However, to the 

extent that Atkinson attempts to present other, unrelated arguments for the 

first time in his appellate brief, we find these thinly developed issues waived.

See Pa.R.A.P. 302(a); Commonwealth v. Murchinson, 899 A.2d 1159, 

1162-63 (Pa.Super. 2006) (stating appellant waives issues under Rule 

2119(a) where appellant does not develop meaningful argument with specific 

references to relevant case law and the record to support claims).
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that any fact that, by law, increases the penalty for a crime must be treated 

as an element of the offense, submitted to a jury, rather than a judge, and 

found beyond a reasonable doubt.” Commonwealth v. Washington, 142 

A.3d 810, 812 (Pa. 2016) (citation omitted). However, “[p]rior convictions are 

the remaining exception to Apprendi . . . and Alleyne . . . insofar as a fact 

finder is not required to determine disputed convictions beyond a reasonable 

doubt to comport with the Sixth Amendment jury trial right.” Commonwealth 

v. Golson, 189 A.3d 994, 1002 (Pa.Super. 2018) (citations omitted) 

(upholding imposition of 25 to 50 year mandatory minimum pursuant to

Section 9718.2 based upon a prior conviction).

After a review of the parties’ briefs, the certified record, and the relevant 

law, we find no error in the trial court’s analysis. The PCRA court properly 

found, in its May 28, 2020 opinion, that Atkinson’s issue lacked merit because 

the trial court sentenced him to a mandatory minimum sentence, under 

Section 9718.2 of the sentencing code, due to past convictions. Thus, we 

affirm based on the well-reasoned opinion of the Honorable David L. Ashworth. 

See PCRA Ct. Op. at 6-8. 

Order affirmed.

Judgment Entered.

Joseph D. Seletyn, Esq.

Prothonotary

Date: 02/17/2021
1_Opinion and Notice 

Circulated 01/29/2021 05:08 PM 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA : v. 

TODD DONALD ATKINSON 

OPINION 

BY: ASHWORTH, P.J., MAY 28, 2020 

No. 0336-2015 

Todd Donald Atkinson has filed, pro se, a petition pursuant to the Post 

Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-9546. For the reasons set forth 

below, Atkinson is being notified pursuant to section 907 of the PCRA that this petition 

will be dismissed in 30 days without a hearing.' 

I. Background 

Atkinson was arrested on December 18, 2014, and charged with six counts of 

sexual abuse of children, child pornography, and one count of criminal use f 

communication facility.2 This criminal prosecution arose from a September 5, 2014, 

undercover investigation by the Pennsylvania State Police into internet sharing of child 

pornography that led to a computer, the IP address of which traced back to Quiche 

Amour, LLC, at the home address of Atkinson. 

'Under Rule 907 f the Pennsylvania Rules of Criminal Procedure, a PCRA court may 

dispose of post conviction collateral relief petitions without a hearing if it is satisfied after 

reviewing the materials submitted that no genuine issues of material fact exist and that the 

petitioner is not entitled to post conviction relief. Pa.R.Crim.P. 907(1). 

218 Pa.C.S.A. § 6312(d), and 18 Pa.C.S.A. § 7512(a), respectively. 
1_Opinion and Notice 

When Atkinson was arrested on these charges, he was on probation for two 

counts of indecent assault of a person less than 13 years of age, criminal solicitation for 

indecent assault of a person less than 13 years of age, endangering the welfare of 

children, corruption of minors, and indecent exposure,3 and is a registered Tier Ill 

Megan's Law offender.4 

On June 25, 2015, Atkinson filed an omnibus pre-trial motion seeking to 

suppress certain evidence seized by the police during the execution of a search warrant 

at Atkinson's home, as well as statements made by Atkinson to the police at that time.' 

Atkinson further sought to suppress all evidence resulting from the search of a business 

property belonging to Atkinson's wife, on the basis that the consent given by his wife for 

the search was not voluntarily. Following a hearing on November 4, 2015, separate 

orders were entered on November 30, 2015, denying the suppression motion and 

motion in limine after finding that (1) there was sufficient probable cause for the warrant 

for the search of Atkinson's home, (2) Atkinson's statement regarding past viewing of 

child pornography in the home was not the result of custodial interrogation, and (3) 

Atkinson's wife's consent to the search of her business was voluntary. 

On the first day of trial in April 2016, scheduled before the Honorable James P. 

Cullen, now retired, Atkinson filed motions to reopen the suppression hearing and to 

318 Pa.C.S.A. § 3126(a)(7), 18 Pa.C.S.A. § 902(a), 18 Pa.C.S.A. § 4304(a)(1), 18 

Pa.C.S.A. § 6301(a)(1), and 18 Pa.C.S.A. § 3127(a), respectively. 

442 Pa.C.S.A. § 9799.14(d). 

50n the same date, June 25, 2015, Atkinson also filed a motion in limine to exclude the 

statements made by Atkinson to the police during the execution of a search warrant that he had 

viewed child pornography in the past. 

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1_Opinion and Notice 

exclude his statement about viewing child pornography in the past. Judge Cullen 

denied these motions, and trial commenced. A jury convicted Atkinson on all counts. 

He was ordered to undergo an assessment by the Sexual Offenders Assessment Board 

prior to sentencing. Atkinson was found to have not met the statutory criteria for 

sexually violent predator (SVP) status. On September 27, 2016, Atkinson was 

sentenced to 25 to 50 years of incarceration on each count of child pornography' plus 

five years of probation for the charge of criminal use of communication facility. All 

sentences were to be served concurrently. No post -sentence motions were filed. 

A direct appeal to the Superior Court of Pennsylvania was filed on October 26, 

2016, and a three -judge panel of the Superior Court affirmed Atkinson's judgment of 

sentence in an unpublished memorandum opinion on January 17, 2018.7 See 

Commonwealth v. Atkinson, 183 A.3d 1064 (Table) (Pa. Super. Jan. 17, 2018). See 

also Commonwealth v. Atkinson, 2018 WL 4460962 (Pa. Super. Jan. 17, 2018). A 

petition for allowance of appeal was denied by the Supreme Court of Pennsylvania on 

June 22, 2018. Commonwealth v. Atkinson, 647 Pa. 24, 187 A.3d 912 (Table) 

(2018). Atkinson was represented during his pre-trial, trial and appeal by privately - retained counsel, M. Alexandra Bradley, Esquire, and Adam W. Bompadre, Esquire, 

from the West Chester, Pennsylvania firm of Lee A. Ciccarelli, P.C. 

6This was the mandatory minimum sentence for a second offense pursuant to 42 

Pa.C.S.A. § 9718.2(a)(1). For sentencing purposes, under 42 Pa.C.S.A. § 9799.14(6), (14), 

Atkinson's prior conviction under 18 Pa.C.S.A. § 3126(a)(7) and his convictions under 18 

Pa.C.S.A. § 6312(d) constituted tier one sexual offenses. See Commonwealth v. Colon - Plaza, 136 A.3d 521 (Pa. Super. 2016). 

'Atkinson raised just one issue on appeal: whether the court erred in denying his 

motions in limine and admitting, over defense objection at trial, Atkinson's statement that he 

had viewed child pornography in the past. 

3 
1_Opinion and Notice 

On August 12, 2019, Atkinson filed, pro se, a timely' PCRA petition. In this 

petition, Atkinson challenges the legality of his mandatory minimum sentences in light 

of the United States Supreme Court's 2013 decision in Alleyne v. United States, 570 

U.S. 99 (2013),9 and trial and appellate counsels' ineffectiveness in failing to raise the 

Alleyne violation. Pursuant to Rule 904(A) of the Pennsylvania Rules of Criminal 

Procedure, Dennis C. Dougherty, Esquire, was appointed on August 16, 2019, to 

represent Atkinson on his collateral claims, and granted leave to file an amended 

'For purposes of the PCRA, a judgment of sentence becomes final at the conclusion of 

direct review, which includes discretionary review in the Supreme Court of the United States 

and the Supreme Court of Pennsylvania, or at the expiration of the time for seeking such 

review. 42 Pa.C.S.A. § 9545(b)(3). See also Commonwealth v. Jones, 54 A.3d 14, 17 (Pa. 

Super. 2012). A petitioner who seeks review in the U.S. Supreme Court has 90 days to do so 

after the Pennsylvania Supreme Court enters an order denying relief. Commonwealth v. 

Monaco, 996 A.2d 1076, 1081 n.2 (Pa. Super. 2010); U.S. Sup.Ct.R. 13 (providing "[a] petition 

for writ of certiorari seeking review of a judgment of a lower state court that is subject to 

discretionary review by the state court of last resort is timely when filed with the Clerk within 90 

days after entry of the order denying discretionary review."). See also Commonwealth v. 

Fairiror, 809 A.2d 396, 398 (Pa. Super. 2002) (statute of limitations for filing petition for post 

conviction relief did not begin to run until defendant's period for filing petition for certiorari in the 

United States Supreme Court lapsed). 

As noted above, Atkinson's judgment of sentence was affirmed by the Superior 

Court on January 17, 2018, and his petition for allowance of appeal was denied by the Supreme 

Court of Pennsylvania on June 22, 2018. Pursuant to section 9545(b)(3), Atkinson's judgment 

of sentence became final for PCRA purposes 90 days later - on or about September 17, 2018 

- when the time expired for Atkinson to file a petition for certiorari with the Supreme Court of 

the United States. See 42 Pa.C.S.A. § 9545(b)(3); U.S. Sup.Ct.R. 13. Accordingly, Atkinson 

had one year from September 17, 2018, in which to file a timely PCRA petition. His petition was 

filed on August 12, 2019 and, thus, is timely. 

9In Alleyne, the United States Supreme Court held "[a]ny fact that, by law, increases the 

penalty for a crime is an 'element' that must be submitted to the jury and found beyond a 

reasonable doubt." 570 U.S. at 102. Owens' mandatory minimum sentences were imposed 

pursuant to sections 7508 and 6317 of the Crimes Code, which have been deemed 

unconstitutional pursuant to Alleyne. See Commonwealth v. DiMatteo, 644 Pa. 463, 478, 177 

A.3d 182, 191 (2018) (holding 42 Pa.C.S.A. § 7508 unconstitutional because it allowed a judge 

to increase a sentence for conviction of drug offenses based on the weight and classification of 

the controlled substance); Commonwealth v. Hopkins, 632 Pa. 36, 55-56, 117 A.3d 247, 258- 

59 (2015) (holding 42 Pa.C.S.A. § 6317 unconstitutional because it allowed a judge to increase 

a sentence for conviction of drug offenses based on the occurrence of the offense within 1,000 

feet of a school). 

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1_Opinion and Notice 

petition within 60 days. Counsel requested a 60 -day extension, which was granted on 

October 15, 2019. 

On November 1, 2019, Atkinson filed a "Motion for Withdrawal of Appointed 

Counsel and to Proceed Pro Se," citing "irreconcilable conflict and difference of opinion 

on the manner in which this case should be litigated." Motion for Withdrawal at ¶ 2. 

Following a Grazierl° Hearing held via video -conference on March 16, 2020,11 

Atkinson's motion to proceed pro se was granted, and Attorney Dougherty was granted 

leave to withdraw his appearance in this matter. 

On November 18, 2019, Atkinson filed, pro se, a "Motion for Discovery Pursuant 

to Pa.R.Cr.P. 573(B)." This motion was originally stayed pending the scheduled 

Grazier hearing. On March 16, 2020, Atkinson's motion for PCRA discovery was 

denied, pursuant to Pa.R.Crim.P. 902(E)(1).12 

"'Commonwealth v. Grazier, 552 Pa. 9, 713 A.2d 81 (1998) (when a waiver of the right 

to counsel is sought at the post -conviction and appellate stages, an on -the -record determination 

must be made that the waiver is a knowing, intelligent and voluntary one). 

"The hearing was originally scheduled for January 9, 2020, but had to be rescheduled 

due to video problems at SCI -Forest. 

12Under Rule 902(E)(1), which applies in all cases except on the first counseled petition 

in a death penalty case, "no discovery shall be permitted at any stage of the [PCRA] 

proceedings, except upon leave of court after a showing of exceptional circumstances." 

Pa.R.Crim.P. 902(E)(1). Neither the PCRA nor the Rules of Criminal Procedure define the term 

"exceptional circumstances." Commonwealth v. Frey, 41 A.3d 605, 611 (Pa. Super. 2012). 

Rather, it is for the trial court, in its discretion, to determine whether a case is exceptional and 

warrants discovery. Id. See also Commonwealth v. Watley, 153 A.3d 1034, 1048 (Pa. Super. 

2016). Here, Atkinson's discovery requests failed to meet the burden of demonstrating 

exceptional circumstances. He made only the bald assertion that "[t]he material requested 

recordsO are very important and necessary, pertinent of pending appeals in Federal Court." 

Motion for Discovery at li 2. He failed to demonstrate how the requested documents were 

exculpatory, or why the discovery requests were exceptional. As the five issues raised in this 

PCRA petition relate to the legality of his mandatory minimum sentences in light of Alleyne, the 

requested discovery simply has no bearing on this case. 

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1_Opinion and Notice 

II. Discussion 

Atkinson claims in the instant PCRA petition that the court imposed 

unconstitutional mandatory sentences for his sexual abuse of children, child 

pornography convictions and that he should be granted relief since this legality -of - sentence issue is cognizable under the PCRA." He further contends all prior counsel 

were ineffective in failing to challenge his illegal sentence. 

In Alleyne, the United States Supreme Court established that "[a]ny fact that, by 

law, increases the penalty for a crime is an 'element' that must be submitted to the jury 

and found beyond a reasonable doubt." Alleyne, 570 U.S. at 102. 

Applying Alleyne, the courts of this Commonwealth have determined 

our mandatory minimum sentencing statutes are unconstitutional where 

the language of those statutes 'permits the trial court, as opposed to 

the jury, to increase a defendant's minimum sentence based upon a 

preponderance of the evidence' standard. 

Commonwealth v. Golson, 189 A.3d 994, 1000 (Pa. Super. 2018) (citing 

Commonwealth v. Newman, 99 A.3d 86, 98 (Pa. Super. 2014)). 

The United States Supreme Court, however, has recognized a narrow exception 

to this rule. Prior convictions, by their very nature, already result from the submission of 

facts to a factfinder under the beyond -a -reasonable doubt standard. As our Superior 

Court noted in Commonwealth v. Miller, 102 A.3d 988 (Pa. Super. 2014): 

"Issues pertaining to Alleyne go directly to the legality of the sentence and are 

cognizable. Commonwealth v. Lawrence, 99 A.3d 116, 123 (Pa. Super. 2014). Retroactivity is 

not an impediment here where Atkinson's sentence of September 27, 2016, was imposed after 

Alleyne was decided, and Atkinson filed a timely PCRA petition. See Commonwealth v. Ruiz, 

131 A.3d 54, 59-60 (Pa. Super. 2015) (a defendant can raise an Alleyne challenge in a timely 

PCRA petition so long as his judgment of sentence was not yet final when Alleyne was decided 

on June 17, 2013). 

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1_Opinion and Notice 

The [United States] Supreme Court's decision in Almendarez-Torres 

v. United States, 523 U.S. 224 ... (1998)[,] held that the fact of a prior 

conviction does not need to be submitted to the jury and found beyond 

a reasonable doubt. Id. at 246.... Alleyne explicitly noted that 

Almendarez-Torres remains good law. See Alleyne, supra at [111] 

n.1 (stating, "[i]n Almendarez-Torres, we recognized a narrow 

exception ... for the fact of a prior conviction"). 

Id. at 995 n.5. Accordingly, mandatory -minimum sentences based on prior convictions 

inherently satisfy the requirements of Alleyne. See Golson, supra at 999-1000 

(upholding imposition of mandatory 25 to 50 year mandatory minimum pursuant to 

Section 9718.2 based upon a prior conviction); see also Commonwealth v. Resto, 645 

Pa. 196, 201 n.1, 179 A.3d 18, 21 n.1 (2018) (plurality) (noting that "under prevailing 

federal jurisprudence, [previous] convictions are not treated as a type of fact implicating 

Alleyne"); Commonwealth v. Bragg, 133 A.3d 328, 333 (Pa. Super. 2016), affirmed, 

642 Pa. 13, 169 A.3d 1024 (2017) (per curiam) (acknowledging that the United States 

Supreme Court has recognized a "narrow exception" to Alleyne for prior convictions). 

Atkinson was sentenced pursuant to section 9718.2 of the Sentencing Code 

which provides for a 25 -year mandatory minimum sentence for repeat sex offenders. 

Section 9718.2(a) states: 

(a) Mandatory sentence. -- (1) Any person who is convicted in any court of this Commonwealth 

of an offense set forth in section 9799.14 (relating to sexual offenses 

and tier system) shall, if at the time of the commission of the current 

offense the person had previously been convicted of an offense set 

forth in section 9799.14 or an equivalent crime under the laws of this 

Commonwealth in effect at the time of the commission of that 

offense or an equivalent crime in another jurisdiction, be sentenced 

to a minimum sentence of at least 25 years of total confinement, 

notwithstanding any other provision of this title or other statute to the 

contrary. Upon such conviction, the court shall give the person oral 

and written notice of the penalties under paragraph (2) for a third 

7 
1_Opinion and Notice 

conviction. Failure to provide such notice shall not render the 

offender ineligible to be sentenced under paragraph (2). 

42 Pa.C.S.A. § 9718.2 (emphasis added). The fact that can trigger the mandatory - minimum sentence set forth in Section 9718.2(a)(1) is a prior conviction. Accordingly, 

Section 9718.2(a)(1) can never run afoul of Alleyne. 

Atkinson does not dispute that he was convicted previously of qualifying offenses 

under this statute, specifically, indecent assault of a person less than 13 years of age 

and corruption of minors.14 Accordingly, Atkinson was subject to mandatory sentences 

as a repeat offender. His sentence is not illegal and does not violate Alleyne. 

In his second issue, Atkinson avers that all prior counsel rendered ineffective 

assistance in failing to challenge the legality of Atkinson's sentences pursuant to 

Alleyne. The underlying claim lacks merit for the reasons discussed above, in 

connection with Atkinson's first issue. Thus, trial and appellate counsel cannot be 

deemed ineffective for failing to raise this issue. See Commonwealth v. Treiber, 632 

Pa. 449, 466, 121 A.3d 435, 445 (2015) (stating that "counsel cannot be deemed 

ineffective for failing to raise a meritless claim"). 

Ill. Conclusion 

For the reasons set forth above, Todd Donald Atkinson's pro se petition for post 

conviction relief will be dismissed, without a hearing, in 30 days, during which time 

Atkinson may file an amended petition or otherwise respond to this Rule 907 Notice. 

Accordingly, I enter the following: 

'418 Pa.C.S.A. § 3126(a)(7), and 18 Pa.C.S.A. § 6301(a)(1), respectively. 

8 
1_Opinion and Notice 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA : v. 

TODD DONALD ATKINSON 

No. 0336-2015 

Pa. R.CRIM.P. 907 NOTICE 

TO: TODD DONALD ATKINSON Date: MAY 28, 2020 

You are hereby advised that, after a review of your pro se PCRA Petition and the 

matters of record relating to your claims, your request for post -conviction relief will be 

denied without further proceedings, in 30 days from the date of this Notice, for the 

following reasons: 

1. There are no genuine issues concerning any material fact; 

2. You are not entitled to post -conviction collateral relief; and 

3. No purpose would be served by any further proceedings. 

If you wish to file an amended petition or to otherwise respond to this 

Notice, you must do so within 30 days of the date of this Notice. 

ADA 

" PR SIDENT JUDGE 

Copies to: Mari L. Andracchio, Assistant District Attorney 

Todd Donald Atkinson, #MS 0675, SCI -Forest, P.O. Box 307, 286 

Woodland Drive, Marienville, PA 16239-0307 
2_Order Denying Amended -Petition for Post -Conviction Collateral Relief 

IN THE COURT OF COMMON PLEAS OF LANCASTER COUNTY, PENNSYLVANIA 

CRIMINAL 

COMMONWEALTH OF PENNSYLVANIA 

v. 

TODD DONALD ATKINSON 

No. 0336-2015 L 

ORDER 

AND NOW, this 7th day of July, 2020, upon consideration of Todd Donald 

Atkinson's "Objection and Response to 907 Intent to Dismiss PCRA Petition and 

Alleyne Challenge", which the Court deems an Amended Petition for Relief Pursuant to 

the Post Conviction Relief Act (PCRA), 42 Pa.C.S.A. §§ 9541-46, and for the reasons 

set forth in this Court's Opinion of May 28, 2020, it is hereby ORDERED that Petitioner's 

Amended PCRA Petition is DENIED without a hearing. 

Pursuant to Pa.R.Crim.P. 908(E), this Court advises Petitioner that he has the 

right to appeal from this Order. Petitioner shall have 30 days from the date of this final 

Order to appeal to the Superior Court of Pennsylvania. Failure to appeal within 30 days 

will result in the loss of appellate rights. 

It is further ORDERED that Petitioner shall have the right, if indigent, to appeal in 

forma pauperis. 

ORTH 

P SIDENT JUDGE